Application for Vacation of Stay in High Court: Format, Grounds and Latest Law
A practical guide to seeking discharge, modification or vacation of an interim stay order in a pending High Court proceeding, with an editable application based on a service recruitment dispute.
What is an application for vacation of stay?
An application for vacation of stay requests the court that granted an interim order to discharge, vary, recall or modify that order. A stay may suspend the operation of a judgment, an appointment, a selection process or further proceedings until the court decides otherwise. The applicant must identify the operative order, show a legally sustainable reason for interference and explain the prejudice caused by continuing relief.
Common grounds include suppression or misrepresentation of material facts when obtaining an ex parte order, a material change in circumstances, subsequent binding decisions, lack of a continuing prima facie case, disproportionate prejudice, or a balance of convenience favouring modification. Allegations of concealment or fraud should be supported by specific pleadings and documents, not asserted as established facts without proof.
Relevant statutory provisions and principles
Section 151, Code of Civil Procedure, 1908
Section 151 preserves the court's inherent power to make orders necessary for the ends of justice or to prevent abuse of its process. It is frequently invoked for appropriate interlocutory relief, subject to the applicable procedure and the court's jurisdiction. In a writ petition, the High Court also exercises its constitutional and procedural powers; Section 151 is not by itself the source of Article 226 jurisdiction.
Order XXXIX Rule 4, Code of Civil Procedure
Order XXXIX Rule 4 deals with discharge, variation or setting aside of an order of temporary injunction. Its provisos address, among other things, material false or misleading statements in an ex parte injunction application and changed circumstances or undue hardship after hearing. Whether and how it applies in a particular High Court writ matter depends on the nature of the order and applicable rules; it should not be treated as automatically governing every stay.
Article 226 of the Constitution of India
Article 226 empowers High Courts to issue directions, orders and writs for enforcement of fundamental rights and for other purposes within constitutional limits. Interim orders in writ petitions are subject to judicial reconsideration on proper grounds.
Article 226(3): specific rule for certain ex parte interim orders
Where an interim order in an Article 226 petition is made without furnishing the affected party copies of the petition and supporting documents and without giving that party an opportunity of hearing, the affected party may apply to vacate it and furnish a copy to the party benefiting from the order or its counsel. Article 226(3) sets out a two-week disposal requirement and a constitutional consequence if the application is not disposed of within the prescribed period. Its exact conditions and computation must be checked before relying on it; it is not a general two-week expiry rule for all stays.
Current Supreme Court position on automatic lapse
The 2018 Asian Resurfacing directions suggested automatic termination of certain stays after six months unless extended by a speaking order. A five-judge Constitution Bench in High Court Bar Association, Allahabad v. State of Uttar Pradesh, judgment dated 29 February 2024, held that interim orders of stay do not automatically expire solely through passage of time and set aside that general automatic-vacation direction. The court granting the stay remains competent to hear a properly founded application for its vacation or variation.
How to seek vacation of stay in a High Court
- Obtain the signed or digitally certified interim order, the writ petition, relevant pleadings and subsequent orders.
- Identify the applicant's standing and the precise stay or restraint sought to be vacated or modified.
- Set out the factual chronology, specific legal grounds, prejudice, and supporting annexures. Disclose connected proceedings and adverse orders.
- File an appropriately titled civil miscellaneous application, supported by an affidavit and documents as required by the relevant High Court rules and e-filing practice.
- Serve the other parties, comply with listing and notice requirements, and seek urgent listing only if supported by genuine urgency.
For Delhi High Court matters, confirm the current practice directions and filing requirements on the Delhi High Court official website. A request to vacate an interim order is not the same as an appeal or a final determination of the writ petition.
Specimen application for vacation of stay in High Court
This editable specimen retains the original example involving DSSSB recruitment, primary teacher appointments, age relaxation, Central Administrative Tribunal proceedings and a writ petition challenging the Tribunal's order. Replace all blanks and remove every allegation or ground that cannot be proved from the case record.
IN THE HIGH COURT OF DELHI AT NEW DELHI
(WRIT JURISDICTION)
CM APPLICATION NO. ______ OF 20____
IN
W.P.(C) NO. ______ OF 20____
Petitioner(s)VERSUS____________________________
Respondent(s)
Application on behalf of Respondent Nos. ____ to ____ seeking vacation or modification of interim stay order dated ____
MOST RESPECTFULLY SHOWETH:
1. That the Applicants are Respondent Nos. ____ to ____ in the above writ petition, which challenges the order dated ____ passed by the Central Administrative Tribunal in O.A. No. ____ of ____. The present application seeks vacation or appropriate modification of the interim stay granted by this Hon'ble Court on ____.
2. That the Applicants applied pursuant to Advertisement No. ____ issued by the Delhi Subordinate Services Selection Board for appointment as Primary Teachers in the Municipal Corporation of Delhi, Post Code ____. The Applicants qualified in the written examination conducted on ____, but their candidature was rejected on ____ on the stated ground of being overage / ineligible for age relaxation.
3. That the Applicants challenged the rejection before the Central Administrative Tribunal in O.A. No. ____ of ____, seeking consideration of age relaxation under the applicable recruitment rules and binding judicial decisions. By order dated ____, the Tribunal allowed the Original Application / directed reconsideration within ____. A true copy is annexed as Annexure A-1.
4. That the writ petitioners challenged the aforesaid Tribunal order after a period of ____ months, together with the related order dated ____ passed in Contempt Petition No. ____. By interim order dated ____, this Hon'ble Court stayed the operation of the Tribunal's order. A copy of the interim order is annexed as Annexure A-2.
5. That the Applicants have filed their counter affidavit dated ____ under Diary No. ____. The petitioners filed a rejoinder dated ____ under Diary No. ____. Relevant portions of these pleadings are annexed as Annexure A-3 (colly).
Grounds for vacation or modification
A. Material factual discrepancy. The writ petition proceeds on the assertion that Mr. ____ possessed the ____ qualification obtained in Delhi. However, the judgment / service record / admission in paragraph ____ of the rejoinder shows that the said candidate held a Diploma in Education from Bhopal, Madhya Pradesh. The Applicants possess comparable qualifications, particulars of which are recorded in paragraph ____ of the Tribunal's order. The Applicants respectfully submit that this discrepancy materially affects the basis on which interim protection was sought. Supporting documents are annexed as Annexure A-4.
B. Prior judicial determination. In W.P.(C) No. ____ of ____, titled Delhi Subordinate Services Selection Board v. ____, the High Court considered whether the age-relaxation benefit extended to candidates with equivalent diploma qualifications. The decision dated ____ and the subsequent Supreme Court proceedings, including Review Petition No. ____ in Civil Appeal No. ____, are relied upon to the extent they actually determine the issues arising here. Certified or authentic copies are annexed as Annexure A-5 (colly). Any plea of res judicata or issue estoppel is subject to identity of issues, parties or privies and other legal requirements.
C. Unequal treatment of similarly placed candidates. The Applicants rely on appointment and result records showing that candidates holding Diploma in Education / Primary Teacher Training qualifications from other States, including Ms. ____ and Mr. ____, were considered for age relaxation in the same recruitment / comparable recruitment. Relevant result notices, appointment orders and RTI replies are annexed as Annexure A-6 (colly). The Applicants seek equal consideration subject to the applicable recruitment rules and the facts of each case.
D. Prejudice caused by continued stay. The Applicants' appointment consideration has remained suspended for approximately ____ years. The Applicants submit that prolonged continuation of the interim order causes substantial hardship, whereas the writ petitioners' interests may be safeguarded by appropriate conditions, if considered necessary by this Hon'ble Court.
E. Delay and conduct of proceedings. The Tribunal passed its order on ____. The writ petition was instituted on ____. The relevant chronology, connected cases and adjournment orders are set out in Annexure A-7. The Applicants respectfully request that the continued necessity for interim protection be assessed in light of the full record and subsequent developments.
F. Correct legal position concerning duration of stay. The Applicants do not contend that the stay automatically expired after six months. The Constitution Bench decision in High Court Bar Association, Allahabad v. State of Uttar Pradesh (2024) governs that question. The Applicants seek an express judicial order vacating or varying the stay on the merits of the grounds pleaded above.
6. That the Applicants submit that the balance of convenience, the prima facie merits and the prejudice likely to result from continuation of the interim restraint warrant its vacation or suitable modification. The Applicants undertake to abide by such conditions as this Hon'ble Court may impose.
7. That no material fact has been concealed in the present application. The Applicants have disclosed the connected proceedings and orders relevant to the relief sought. The application is made bona fide in the interests of justice.
Prayer
In the circumstances stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to:
(a) Vacate the interim stay order dated ____ passed in W.P.(C) No. ____ of 20____ and CM Application No. ____ of 20____, insofar as it stays the operation of the Central Administrative Tribunal's order dated ____ in O.A. No. ____ of ____;
(b) In the alternative, modify the interim order to permit consideration of the Applicants' cases / further administrative action subject to the outcome of the writ petition and such safeguards as the Court deems appropriate;
(c) List the present application for early hearing in view of the continuing prejudice pleaded above; and
(d) Pass such other or further order as this Hon'ble Court may deem fit in the interests of justice.
AND FOR THIS ACT OF KINDNESS THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY.
Place: New Delhi
Date: ____ / ____ / 20____
Applicants / Respondents
Through Counsel
________________________
Advocate
Supporting affidavit (illustrative)
I, ____, aged ____ years, residing at ____, Applicant / authorised deponent in the above matter, do hereby solemnly affirm that the facts stated in paragraphs ____ to ____ of the accompanying application are true to my personal knowledge and those in paragraphs ____ to ____ are based on records and legal advice believed to be true. No material fact has been knowingly suppressed.
Verified at New Delhi on ____ that the contents of this affidavit are true and correct to the extent stated above.
DEPONENT
________________________
Suggested annexures
| Document | Purpose |
|---|---|
| Tribunal order and relevant O.A. papers | Identify the operative decision under challenge |
| High Court stay and subsequent orders | Establish precise scope and continuing operation of stay |
| Writ petition, counter affidavit and rejoinder | Show pleadings and any alleged inconsistency |
| Judgments relied upon | Demonstrate binding legal position and factual comparability |
| Recruitment notices, result records, RTI replies | Support qualifications and differential-treatment grounds |
Official legal resources and further reading
- India Code - Constitution of India and Code of Civil Procedure, 1908, including Section 151 and Order XXXIX Rule 4.
- Supreme Court of India - official judgments and case-status services; search for High Court Bar Association, Allahabad v. State of Uttar Pradesh, decided 29 February 2024.
- Delhi High Court - current filing rules, practice directions, orders and cause lists.
- eCourts Judgments - judicial decisions and related case research.